The Law Office of Kurt H King

June 27, 2017

Are Administrative Child Support Actions Too Prone to Error?

In my opinion, Administrative actions in Missouri that order a person to pay child support are ripe for error and constitutionally weak.

Too often, the father named on the birth certificate is not the child’s biological father.  He is the mother’s new guy or husband, and maybe she does not even know who is the father but names the one she thinks best under the circumstances.  The mother can point the finger at a guy she knows is not the child’s biological father and the Children’s Division run with it as though the gospel truth.

When the Children’s Division presumes the guy the mother names is the child’s father, a notice goes out to the presumed father advising him of his need to request a hearing if he disagrees with the child support amount proposed by the Division.

A poor, uneducated, or legally inept “father’ may not request a paternity test or other action to refute the Division’s child support proposal.

Or, the presumed father may have been supporting a child not his for years and believe he is the father of that child, thus seeing no need for paternity testing.  Or he may know that he is not the biological father but have cared and loved the child for years, leading him to consider the child as his own and not request paternity testing.

To avoid these mistakes, paternity testing should be required in all Children’s Division cases.  Cost of testing weighs far less than harm to presumed fathers who are not the actual biological father of the child.  Too, such mistakes cost the real, biological father an opportunity to know and be a part of the child’s life.  Perhaps the ultimate loser is a the child who grows up never knowing his real father.

Kurt H. King

20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Personal Injury, Litigation, Other Matters

 

When Dad is Not the Dad but has been the Father for Years

It happens that a guy will knowingly marry a lady pregnant by another guy or with a young child by another man.  Then years later when the child is in his teens–even late teens–the couple divorces.  The non-biological “father” to the child may love the child and want to be the dad.  The “real” biological father may not know of the child or may not want to have a connection–and child support obligation–so late in the childhood of the child.

While it may be tempting to just tell the Court the non-bio husband is the child’s father–he may even be named as such on the birth certificate–is that fair to the biological father to by-pass his rights and give him no chance to step in and connect to his child?–No.  And, could the attorneys involved be sued later by the bio dad for fraud?–Probably so!

Maybe a safe way to handle this situation is to join the real bio dad to the case, with a count added to establish his paternity (and may be for reimbursement of back support provided–see final paragraph of this post).  Then, if the bio dad wants to connect to his child, the Count is in position to so order.

But what if the bio dad wants not to be declared the child’s father and/or not to pay child support?  (Maybe he married and has other children who he is working hard to support.)

What if the child is 15, 16, or 17 years old at the time of disposition of the divorce case?

Do the lawyers run the divorce through as though the non-bio father is the dad of a child of whom he is not the real biological dad?  What if they don’t tell the Court about who the real bio father is? 

Does that position violate lawyer ethics?–malpractice?–fraud?

But what if the lawyers tell the judge, and the judge says okay to that approach?  Are the lawyers off the hook and safe from bar complaints and lawsuits against them down the road?

What if representation by counsel that child is the non-bio guy’s child later costs the child an inheritance–or Social Security benefits–or biological grandparents learn they have a grandchild they never knew their son fathered?  Or maybe the child quickly becomes wealthy, dies fairly early, and leaves a large estate of which the biological father or his relatives want a decent share?

I think a judge (and lawyers) should–as one I respect has–flat out refuse an order holding the non-bio guy to be the father of a child he did not biologically father.  If he is not the dad, then he is just not the dad.  Sometimes saying “no, period” saves a lot of trouble down the road.

One side issue may also surface: the non-bio husband may sue the biological father for five years back support the non-bio guy provided the child.  Missouri statute 210.828, subsection 2, provides:

“A parent’s retroactive liability to another party for reimbursement of necessary support provided to the child for whom a parent and child is established under section 210.817 to 210.852 is limited to a period of five years next preceding the commencement of the action.”

Kurt H. King

20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Personal Injury, Litigation, Other Matters

November 21, 2016

EMBRYO IN VITRO–Missouri’s McQeen v. Gadberry Case

November 15, 2016, the Eastern District issued its opinion in a Missouri first-impression pre-embryo in vitro divorce case–McQueen v. Garberry, ED 103138 (Mo. Ct. App.).

The Court’s decision runs long but warrants a full read; its core holding/ruling is:

Some key facts discussed by the Court include:
1.  Neither wife McQueen (attorney) or husband-Gadberry (soldier, MBA) are impotent and each can procreate children naturally–their reason for using in vitro was husband’s impending tour of combat duty–two of the four embryos were implanted and born alive and presumably well to the couple;
2.  Custody sharing of the couple’s two children was said to be difficult;
3.  Husband did not want more children with McQueen, who filed for the divorce;
4.  Wife may have pulled some shenanigans by handwriting in the margin of the embryo storage documentation that “use” of the embryos would go to her in case of divorce–husband testified that language was not there when he signed it; she used blue and black ink in the same area; signed but notarized later; etc., causing the trial court to find the documents to be insufficient to hold husband in agreement on such an important issue.
Ultimately, the court of appeals affirmed the trial court’s order casting the embryos as marital property of a “special character” and requiring they be stored unless and until both McQueen and Gadberry execute a sufficient written agreement otherwise.
Kurt H. King
Law Office of Kurt H. King, 20 E. Franklin Street, Liberty, Clay County, Missouri 64068
816.781.6000
Missouri Family Law, Personal Injury, Workers’ Compensation, General Matters

December 22, 2015

Rare Missouri Case Allowing Re-litigation of Civil Contempt Claims

Parties file Civil Contempt cases due to an opposing parties’ refusal to comply with the Court’s judgment.  In defense to the contempt action, the violating party may claim that collateral estoppel or res judicata bars all claims that were or could have been asserted in previous litigation between the parties.  Many cases uphold that defenses, but the Western District of the Missouri Court of Appeals held otherwise in a case where the violating party lacked the financial ability to comply with an order that he pay maintenance at the time his former spouse first tried to hold him in contempt of court on that basis.

By the time of second contempt action, however, the man’s finances had improved and the trial court allowed the former wife to proceed with her contempt claim for failure to pay temporary mainteance.  The Court of Appeals upheld the trial court’s rejection of collateral estoppel/res judicata as a defense.

The case is Walton v. Walton, 789 S.W.2d 64, 67-68 (Mo. Ct. App. W.D. 1990).

Law Office of Kurt H. King

20 E. Franklin, Liberty, Missouri 64068; 816.781.6000

Civil Litigation including Personal Injury and Property Claims, Workers’ Compensation, Family Law & General Matters

July 10, 2014

One Contempt Case Followed By Another–Barred By Res Judicata?

Filed under: Divorce,Family Law,Paternity,Support — kurthking @ 9:49 pm
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Ex-spouse sues for contempt in a second case to hold their former spouse in contempt  for a violation that existed at the time of a prior case between the parties.  Is the second action barred by Missouri’s doctrine of res judicata since the violation had already occurred by the time of the first case?

The Eastern and Western Districts of the Missouri Court of Appeals have decided this question differently but the two cases may turn on whether the party in contempt had the ability to pay and purge the contempt at the time of the first contempt motion.  In one case (Foster) the party in contempt may well have had the ability to pay for his contemptuous actions at the time of the first case, while the contemptuous party in the other case (Walton) definitely lacked that ability at first.  The Western District of the Missouri Court of Appeals ruled in Walton v. Walton, 789 S.W.2d 64 (Mo. Ct. App. W.D. 1990), that the petitioner may press forwards in the second case to recover for contempt that occurred before judgment in the first case.  Compare the Eastern District’s holding that  the relief sought in a second contempt case is partially barred by res judicata in Foster v. Foster, 39 S.W.3d 523 (Mo. Ct. App. E.D. 2001).

In Walton, the trial court first ruled on a contempt motion in the parties’ divorce case that the husband was in contempt of court for not paying maintenance but decided not to confine him for failure to pay temporary maintenance while the divorce case was pending.  The decision implies that at the time of the second contempt action (in part to recover the same unpaid maintenance and attorney fees), the husband’s ability to pay had increased to the point where he could purge the contempt.  This situation seems to reoccur frequently in Missouri as courts decline to hold a guilty spouse in contempt due to financial or practical concerns.  Recognizing these circumstances, the Western District affirmed the trial court’s decision to jail the husband for his failure to pay maintenance and attorney fees he now had an ability to pay.

Walton finds some support outside Missouri.  After considering the practical ramifications that flow from swings in the “violating” party’s financial ability to pay, the Supreme Court of Georgia approved a trial court’s refusal to apply res judicata in such a contempt case.  Beach v. Beach, 224 Ga. 701, 164 S.E.2d 114 (1968).   Pointing out that such a contempt proceeding was “merely one method of enforcing [the divorce judgment],” that court observed that contempt proceedings do not change the original judgment they seek to enforce, “but only imposed terms under which he could purge himself of the charge of contempt.”  Since the former wife had not yet recovered the monies originally awarded her in the divorce judgment, the trial court correctly permitted her to seek that relief again in the second contempt case.  224 Ga. at 702-703.  “This principle [res judicata] is not applicable to the facts of the present case.”  The Western District’s decision in Walton resembles at of the Georgia Supreme Court in Beach.

The Eastern District’s decision in Foster is less forgiving.  There the Eastern District partially reversed the trial court, taking away on appeal the former wife’s recovery for her cost of health insurance (that husband had been ordered to provide at his expense) as the premiums that accrued prior to the date of the judgment on her first contempt motion, in which she claimed the same damages but then deferred to be asserted at a later date, the second contempt motion being filed 20 months later.  The Eastern District simply applied standard res judicata principles to the situation in Foster without mention of the husband’s ability to pay for the damages caused by his violation of the divorce court’s judgment.

Foster comes across as rigid.  It makes little room  for situations where the violating party acted in contempt of the court’s order but lacks the ability to pay, and therefore cannot be jailed to force payment.   Fairness should afford the damaged party opportunity to refile for contempt and recover those same damages when the violation party’s gains the ability to pay as of the time of the second case.  So long as there is no double recovery, no unfair prejudice results to the violating party who did not have the ability to pay the first time around.

Perhaps the key to both cases is the violator’s ability to pay–the ex-husband in Foster having the ability to pay during the first contempt case and former wife filing multiple contempt cases without good cause, versus Walton where the husband could not pay in the first case but could at the time of the second for contempt.

And while change in finances may be one circumstance that would cause a court not to apply res judicata where there are multiple contempt motions, other changes of circumstances could have the same effect.  For instance, where a party has hidden or stolen property awarded to the other spouse but this is not discovered until after the first contempt motion; or if jailing the former spouse for not paying a credit card debt would cost him his job and make him unable to pay child support; or where the court looks at the contempt as a relatively minor violation not worthy of a commitment order; or if the property the contemnor took is first said to be “stolen” until found after the first contempt case; or if the judge simply dislikes putting folks in jail for not following the letter of the judgment.

Res judicata and contempt motions are just not a good fit.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

http://www.kurthking.com

 

Family Law–Divorce, Modifications, Paternity, Child Custody and Support

Personal Injury, Workers’ Compensation

Chapter 7 Bankruptcy

General Matters

 

 

June 12, 2014

WHEN STEP-PARENTS AND OTHER NON-BIOLOGICAL PARENTS MAY HAVE TO PAY CHILD SUPPORT BY MISSOURI LAW

Filed under: Divorce,Family Law,Paternity,Support — kurthking @ 8:41 pm
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Missouri recognizes at least two exceptions to the general rule that a husband is not bound to support illegitimate children born to his wife before or during the marriage.  Those exceptions are: 1)  express contract; and, 2) equitable estoppel.

Several Missouri appellate court opinions address issues as to whether the facts of a particular case merit application of one or both of those exceptions.  Thus far, only one Missouri case so holds, that being the early case of L . . . v. L . . ., 497 S.W.2d 840 (Mo. Ct. App. W.D. 1973), where husband expressly contracted to support the child to be born as consideration for wife’s agreement to marry him.

Cases ruling against the proponent of such an exception include: White v. White, 293 S.W.3d 1 (Mo. Ct. App. W.D. 2009) (same sex partners; failure to plead and prove the elements of express contract or equitable estoppel); Jefferson v. Jefferson, 137 S.W.3d 510 (Mo. Ct. App. E.D. 2004) (Missouri has not adopted the “equitable parent” doctrine; wife misrepresented to husband that he was father of child); Stein v. Stein, 831 S.W.2d 684 (Mo. Ct. App. E.D. 1992) (divorce filed before adoption final; wife, with a profession and independent financial means, adopted on her own, husband having withdrawn from the adoption; husband’s representations that he would support child were made to adoption and immigration officials, not wife, so no express contract; no equitable adoption because no detrimental reliance and no injustice to wife or child); S.E.M. v. D.M.M., 664 S.W.2d 665 (Mo. Ct. App. E.D. 1984) (wife became pregnant while separated from husband, then reconciled, husband treated child as his own until final separation when child was approximately eight months old; wife’s agreement to reconcile not sufficient consideration for an express contract that husband support the child; no detrimental reliance for equitable estoppel).

Step-parents beware.

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law–Divorce, Modifications, Child Custody/Support/Visitation, Paternity, Guardianship

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy for Debtors

http://www.kurthking.com

November 18, 2013

Unusual Varieties of Income for Child Support Calculations

Filed under: Divorce,Family Law,Paternity,Support — kurthking @ 9:23 pm
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Here is a list of some out-of-the-ordinary sources of gross income for child support calculations in Missouri–from Heckman v. Heckman, Slip Opinion WD75676 (October 15, 2013):

1.  salary, of course

2.  dividends, capital gains, annuities, pension and retirement benefits–but the increase in value of stock is GENERALLY NOT included unless it is liquidated so as to result in capital gain (Gordon v. Gordon, 924 S.W.2d 529, 533 (Mo. Ct. App. 1996))–HOWEVER, the employee’s sale of restricted stock issued by company to employee as part of compensation package may be treated as dividends and included in gross income–p. 8 of Heckman

3.  pre-tax “flex plan benefits”–citing Fulton v. Adams, 924 S.W.2d 548, 554 (Mo. Ct. App. 1996); but not employer contributions to retirement plan, Roberts v. Roberts, 847 S.W.2d 108, 109 (Mo. Ct. App. 1992)

4.  rent received is included–Graves v. Graves, 967 S.W.2d 632,641 (Mo. Ct. App. 1998)

5.  the value of new stock issued as part of annual compensation package–even if it is restricted stock that vests over a time span of years, at least where the amount that vests each year may be averaged or there is some other reasonable method for considering past, present, and anticipated restricted stock earnings–pp. 7-8 of Heckman slip opinion

6.  the employee’s sale of restricted stock issued by company to employee as part of compensation package may be treated as dividends and included in gross income–p. 8 of Heckman

7.  company stock purchased with funds which would otherwise have been received as compensation is included–p. 9 of Heckman

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law–Dissolution of Marriage, Modification, Paternity–Child Custody, Support, Visitation

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy, General Matters

June 14, 2013

Child Support In Missouri When Neither Parent Has Custody

Filed under: Custody,Divorce,Family Law,Paternity,Support,Uncategorized — kurthking @ 2:01 pm
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When the child is a minor and neither parent has custody, a case for child support can be initiated for the child by a state agency, a guardian, or third person providing support as next friend for the minor child.

But what about an adult son or daughter over the age of 18 in college living with neither parent?  While child support generally continues until the the child reaches age 21 for those who go on to college or other certain other post-high school education, who can bring a case in court for support of the adult child not yet 21 who left both parents behind (or vice versa) for whatever reason and is taking the required class load and working part-time?

First, can a parent file for the other parent to pay support when the child lives on his/her own or with third persons?

Law:  Where an adult child not yet 21 years of age is not living with either parent–i.e., on their own or living with friends–and attending college or such, and neither parent is making a financial contribution to the child’s expenses, then neither parent is sufficiently affected by the non-payment of child support by the other so as to be able to sue for child support from the other parent.  See Higginbotham v. Higginbotham, 362 S.W.3d 34, 36-37 (Mo. Ct. App. S.D. 2012) (daughter could not sue for child support ordered paid by mother to the grandmother).

And see Denton v. Sims, 884 S.W.2d 86, 89 hn. 5 (Mo. Ct. App. E.D. 1994), where the court of appeals reversed the trial court by ruling that the mother was not entitled to retroactive child support for one of three children  “for a period of time when she was not supporting daughter and daughter was not living with her.”  The daughter lived with a third-party and mother then made “no financial contribution to her upbringing.”

Second, if the parents cannot sue, can such an adult child entitled to support sue one or both parents in those circumstances?

Despite a dearth of Missouri cases on this point, there seems to be no reason why the adult child could not sue in his or her own name for support just as an adult could bring other cases in court.  But, this does not appear to be happening as a practical matter.  Presumably, adult children having flown or been kicked out of  the family nest are not of the mindset to turn back and sue a parent for support.  Maybe it is pride, but certainly it is psychologically difficult to sue to your parents.  And so, while it can happen, it doesn’t.

Lastly, if the lot of such an adult child not yet 21 trying to make it in the world and get a college or similar education, without support from the parents, seems unfair, REMEMBER: life is not fair, and Missouri law does not require parents still married to support their children after high school either.  For some reason, divorced parents can be ordered to pay support during college generally until the child turns 21, but married parents need not.  One of life’s little injustices?

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Personal Injury, Workers’ Compensation, General Matters

May 7, 2013

SSI For A Disabled Child Is NOT Credited Against Child Support

Filed under: Divorce,Family Law,Paternity,Support,Uncategorized — kurthking @ 5:16 pm
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Previous posts speak of the non-custodial parent receiving a credit against that parent’s child support obligation in the amount of Social Security Disability paid for the child on account of the obligated parent’s disability.  And, that a credit for SS Disability is not granted the obligated parent when SS Disability is paid for the child on account of the CUSTODIAL parent’s disability.

BUT what about when the child is disabled and receiving Supplemental Security Income (SSI) payments from Social Security due to the child’s own disability and not that of either parent?

Both the Western and Eastern Districts of the Missouri Court of Appeals rule that the parent paying child support is not entitled to a credit against his or her child support obligation for SSI paid due to the child’s disability.  Lewis v. Dept. of Social Services, 61 S.W.3d 248, 258 (Mo. Ct. W.D. 2001); Malawey v. Malawey, 137 S.W.3d 518, 528 (Mo. Ct. App. E.D. 2004).

The courts reason that SSI paid on the child’s account due to the child’s disability merely supplements in order to defray the extraordinary cost of caring for a child with disability.  Too, such SSI  is paid on account of the child, disconnected from the Social Security account of the parent obligated to pay child support.

So, a credit against child support due to SSI on account of the child’s disability is not happening in Missouri.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

http://www.kurthking.com

Family Law–Divorce, Modification, Paternity, and Child Custody, Support, Visitation

Personal Injury, Workers’ Compensation, and General Matters

March 19, 2013

50/50 Custody and Child Support in Missouri

Filed under: Custody,Divorce,Family Law,Paternity,Support — kurthking @ 8:44 pm
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Many parents facing divorce aim to avoid paying child support by pressing for equal custody of the children of the marriage.   The common belief is that if they split time with the children basically down the middle, no child support payments to the other spouse will be required.

In an agreed-upon/uncontested case, the court may well approve such a custody arrangement.  But is the 50/50 custody split in the best interests of the children?  Many would say not–including Judge Chamberlain who spoke at the March 15, 2013, Family Law CLE in Clay County.  By and large, judges do not favor 50/50 custody because one home base for the child beats trying to make a dual home rotation function.

So, if your divorce or other custody battle is for trial, there is little chance of an award of 50/50 custody from the judge.

And if you insist on taking that route, the court will require extensive proof as to who pays what bills and provides what support so as to determine and order what bills and expenses paid by each parent.  The cost of coming up with sufficient proof is high and as the judge said, “95% of your clients can’t afford you anyway.”

Why spend the money on this expensive long-shot?

Lastly, in such a case the judge will also examine the parties’ incomes.  If one parent makes more money that the other, the court can still order the parent with the greater income to pay child support to the other even in a 50/50 custody situation.

One bit more–the judge may insist that all issues be tried even where the parties claim to have an agreement of 50/50 custody.  All the facets of the case intertwine to affect the court’s judgment and thus a small trial on just a few issues may snowball into a full blown trial covering child custody issues as well–pouring all your hard work spent to hammer out a 50/50 custody agreement down  the drain.  Not good.

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law–Dissolutions, Modifications, Child Support/Custody/Visitation, Paternity

General Litigation and Matters

http://www.kurthking.com

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